Dismissal Of Statutory Bail Application U/s. 167(2) Does Not Completely End The Right Of Bail Of Accused: Madras HC

The Madras High Court allowed a Criminal Original Petition filed by a Petitioner who was added as an Accused after the final report was filed and the cognizance was taken. Therefore, the Special Judge refused his statutory bail application under Section 167(2) Criminal Procedure Code (CrPC).

The Court noted that the rejection of a statutory bail application under Section 167(2) of the CrPC should be regarded as an intermediate order rather than an interlocutory order. Such an order can be challenged through a regular bail application or through a revision petition, and the prohibition under Section 397(2) of the CrPC does not apply to such an intermediate order, the Court observed. 

Justice N. Anand Venkatesh observed, “If a statutory bail application is dismissed, it certainly involves the determination of an indefeasible right given to the accused person and such an order cannot be considered to be an interlocutory order and such order is more than a purely interlocutory order and less than a final disposal. The reason for rendering such a finding is that the accused person loses his right of being let out on a statutory bail and that right is lost by virtue of the dismissal of the application. The accused person can always file an application seeking for a regular bail and the same will be considered on merits and the Court may be satisfied that the accused can be enlarged on bail pending the main case. In such a scenario, the dismissal of the statutory bail application does not completely bring to an end the right of an accused person to be enlarged on bail, but such enlargement on bail at a later point of time happens on consideration of the merits of the case. Therefore, the dismissal of a statutory bail application under Section 167(2) of Cr.P.C., can be considered only as an intermediate order and not as an interlocutory order. Such order can be challenged by way of filing a revision petition and the bar under Section 397(2) of Cr.P.C., will not apply to such an order”.

Advocate R. Murali appeared for the Petitioner/ Accused no. 20 and Additional Public Prosecutor A. Damodaran appeared for the Respondent/Complainant.

The Respondent conducted an investigation under the Indian Penal Code (IPC), Tamil Nadu Protection of Interests of Depositors (TANPID) and Banning of Unregulated Deposit Schemes Act, 2019 (BUDS Act). The investigation was completed and the Accused was neither named in the FIR nor in the final report. In the course of further investigation, the Accused was arrested, remanded to judicial custody and sent to judicial custody for more than 90 days. The Accused/ Petitioner filed an application seeking statutory bail under Section 167(2) of the Criminal Procedure Code (CrPC) which was dismissed. The Special Judge held that cognizance of the final report was taken and the petitioner was arrested only in the course of further investigation. Therefore, the Petitioner can only file a regular bail application which will be considered on the merits of the case. Aggrieved by the order, the Accused/Petitioner filed a Petitioner before the High Court.

The Court had to ascertain whether an order dismissing an application under Section 167(2) of CrPC, substantially affects the indefeasible right that has been given to an accused person to be released on bail. Additionally, the Court had to ascertain whether such an order was interlocutory and can be challenged only through a revision petition. 

The Court emphasized that when considering a statutory bail application, the Court does not delve into the merits of the case. If a statutory bail application is dismissed, it entails a determination of the accused person's undeniable right, and therefore, it cannot be classified as a mere interlocutory order, the Court asserted. 

In this context, the Court noted, “In the light of the settled law, the Court below was not right in rejecting the statutory bail application filed by the petitioner under Section 167(2) of Cr.P.C., since the petitioner was not an accused before the Court when the final report was filed and the cognizance was taken and the petitioner is now being added as an accused and arrested in the course of further investigation under Section 173(8) of Cr.P.C., before the supplementary charge sheet is filed. In view of the fact that the detention of the petitioner is continuing beyond 90 days and the supplementary charges sheet has not been filed, the petitioner is certainly entitled for the indefeasible right provided under Section 167(2) of Cr.P.C., and the petitioner must be enlarged on statutory bail if he is prepared to and does furnish bail. The second issue that was taken up for consideration is also answered in favour of the petitioner”.

The Court noted that the issue to ascertain was whether the petitioner is entitled to be released on statutory bail since his detention continues for more than 90 days and the additional report / supplementary report is yet to be filed before the Court pursuant to the further investigation undertaken under Section 173(8) CrPC. The Court noted that since the Petitioner was being added as an accused and arrested in the course of a further investigation under Section 173(8) of CrPC before the supplementary charge sheet was filed; the Petitioner will be entitled to the indefensible right to bail.

The Court ruled in favour of the Petitioner while holding that the rights of an accused person, who was arrested during an investigation are governed by Section 167 of CrPC regarding custody, release, and bail. In essence, the benefit under Section 167(2) applies to pre-charge sheet filing, which ceases after a charge sheet is filed, the Court emphasised. The Court's remand power depends on the case stage: Section 167(2) pre-cognizance and Section 309(2) post-cognizance. Section 309(2) applies to the accused in custody when cognizance is taken or during the trial. Further investigation doesn't grant an advantage under Section 167(2) post-cognizance, the Court emphasised.

The Court also noted that the subsequent issue to ascertain was; whether there is a complete bar for the Court to exercise its jurisdiction under Section 482 of CrPC., against the order passed by the Court below dismissing the application under Section 167(2). The Court observed that the limitation in the exercise of jurisdiction under Section 482 of CrPC is in the nature of self-restraint. 

“The next question is that whether there is a complete bar for this Court to exercise its jurisdiction under Section 482 of Cr.P.C., against the order passed by the Court below dismissing the application under Section 167(2) of Cr.P.C. It is too well settled that there is no total bar on the exercise of inherent power where abuse of process of the Court or other extraordinary situation arises for the Court to exercise such a jurisdiction. The so-called limitation in the exercise of jurisdiction under Section 482 of Cr.P.C., is more in the nature of self restraint and nothing more”, the Court observed.

Accordingly, the Court allowed the Petition and set aside the impugned order.

Cause Title: Gnanasekaran Thiyagaraj v State

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